PropertyProf Blog

Stake on Estates and Future Interests

Jeff Stake (Indiana-Bloomington) has posted Summary of Key Rules in the Law of Estates and Future Interests on SSRN.  Here's the abstract:

The rules of law governing estates in land and future interests are boiled down as much as possible, but hopefully not more so.

As members of the PropertyProf listserv know, Jeff is one of the most knowledgeable people around on issues of future interests and estates in land.  Highly recommended, especially for students looking for secondary material on these issues.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Korngold on Intergenerational Conflicts

Gerald Korngold (Case Western Reserve University School of Law) has posted Resolving the Intergenerational Conflicts of Real Property Law: Preserving Free Markets and Personal Autonomy for Future Generations on SSRN.  Here's the abstract:

This article argues that land allocation agreements (e.g., deeds, mortgages, covenants, easements, etc.) made today will have a profound and perhaps negative effect on owners in future generations. It shows that the current architecture of the land transaction system and related rules unduly favor current owners over successors, causing a negative impact on land markets and choices of future players. Moreover, the article demonstrates that current doctrine and theory do not provide adequate flexibility for future generations to deal with outmoded land allocation agreements, leading to inefficiencies and frustration of the personal autonomy of future owners. The article suggests a new conceptual framework as well as specific alternative approaches for courts and legislatures across the spectrum of real property areas (including, inter alia, interpretation of instruments, the recording system, changed circumstances rules, conservation easements, subdivision covenants, and eminent domain). Given the historical and ongoing importance of land in the American experience, it is essential that decision makers act to guarantee future generations the opportunity to engage in markets and to fulfill their personal aspirations.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

A Bet Against the Rule Against Perpetuities

As I noted a few months ago, Pennsylvania recently abolished the Rule Against Perpetuities.  I wanted to go on record with this prediction:  I think that within ten years, more than half of United States jurisdictions will have abolished the RAP outright, and that virtually all will have at least permitted perpetual trusts.  (According to the handy table in the new edition of D&K, Alaska, Idaho, New Jersey, Pennsylvania, Rhode Island, South Dakota, and Wisconsin have all abolished the RAP outright; a total of 21 U.S. jurisdictions presently allow perpetual or 1,000 year trusts, most by allowing an opt-out of the RAP in a trust document).  I have to confess that I have a slight conflict of interest, because I'm working on an article on how to make abolition of the RAP more workable, particularly for interests not held in trust.  But I'm pretty confident that the RAP is a doctrine that will not last another generation, in part because the trust management industry has the incentive to push reform legislation.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Pennsylvania Abolishes Rule Against Perpetuities

Last week, Pennsylvania enacted legislation that among other things abolishes the rule against perpetuities for interests created after December 31, 2006 (the link is to the Senate bill; the Governor approved the bill on July 7).  The legislation amends several code sections, but the following captures the essence of the bill:

20 PSA  § 6107.1.  Applicability of rule against perpetuities.
    (a)  Traditional rule.--Sections 6104 (relating to rule against perpetuities), 6105 (relating to rule against perpetuities; disposition when invalidity occurs), 6106 (relating to income accumulations; when valid) and 6107 (relating to income accumulations; disposition when invalidity occurs):
         (1)  shall apply to every interest created before January 1, 2007; but shall not apply to any interest created after December 31, 2006.
   (b)  Modern rule.--All of the following apply to every interest created after December 31, 2006:
        (1)  No interest shall be void as a perpetuity.
        (2)  No direction or authorization to accumulated income shall be void as a perpetuity.

As a result, Pennsylvania will retain its wait-and-see approach to the RAP for interests created before January 1, 2007, but will have no RAP for interests created January 1, 2007 or after.  The practical impact will be that specialists in trust litigation and related matters will need to know the RAP, but that the average practitioner drafting wills and trust documents in Pennsylvania will not need to worry about it.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Yet More Aloha Jurisprudence

I posted a little bit about "aloha jurisprudence" in April.  The basic idea here is that Hawaii's court are taking direction from what the Hawaii statutes call the "aloha spirit": "the working philosophy of native Hawaiians(;) ... 'Aloha' is the essence of relationships in which each person is important to every other person for collective existence." HRS § 5-7.5(a).

A few weeks ago I wrote a little bit about Makila Land Company v. Heirs of Apaa, which is a recent intermediate court of appeals opinon that dealt with a claim to property from the nineteenth century.  The plaintifs believed they were intestate heirs of Apaa; the court reserved the trial court's dismissal of their claim, in part because the court took testimony on the meaning of a Hawaiian kinship term, "makuakane."  (More evidence of aloha jurisprudence, I think.)

The question that one might have in Makila Land Company is: why would what happened in the late nineteenth century matter?  Wouldn't a claim founded on such old claims be barred by the statute of limitations?  Well, perhaps not.  And that's where the Hawaii Suprme Court's 1999 opinion in Pioneer Mill Company v. Dow comes in.

Pioneer Mill, which was argued by my former colleague Carl Christensen, dealt with a claim to land on Maui that was owned by Thomas Phillips at his death in . . . 1864.  Phillips' wife, Kahoonaeha, and Thomas'his first wife's brother, John White, each ended up with a half interest in the property.  Kahoonaeha left life estates to her daughter and grandson and White transfered the property to his son and grandson in 1880 (apparently without consultation with Kahoonaeha or the life estate holders).  After some more transfers, the property came into the hands of one E.G. Gerreira in 1907 and, ultimately, into Pioneer's hands in 1924.

Pioneer asked for summary judgment against the claim in 1994, arguing that it had "openly, notoriously, continuously and exclusively used the land."  And although the intermediate court of appeals accepted their argument, the Hawaii Supreme Court reversed because Pioneer Mill did not meet its high burden of showing by clear and convincing proof that it adversely possessed the property.  The court reached back to some nineteenth century precedent (as well as some more recent cases) to hold that: if the initial occupation is permissive, then there is a presumption of continued permissive occupation until

such time as the adverse claimant shows, by words or acts sufficient to give notice to the contrary to an ordinarily prudent and vigilant owner, that he, she, or it, the adverse claimant, had changed its character and was thereafter occupying adversely.

Pioneer MIll could still rebut that presumption, obviously--but it needed to show some evidence other than long-term occupation (apparently) to do so.  Mighty nice of Justice Mario Ramil and the rest of the Hawaii Supreme Court to help out the heirs that way.  It's the aloha spirit in action, I think.

You may use other cases to teach the difficulty of adverse possession against co-tenants.  If you teach in Alabama, you might use Ex Parte Walker, 739 S.2d 3 (Ala. 1999).  You might also use some of the cases discussed in Helen Jenkins, Study of the Intersection of DNA Technology, Exhumation, and Heirship Determination as it Relates to Modern-Day Descendants of Slaves in America, 50 Alabama Law Review 39 (1998).  I hope that you'll also think about using Pioneer Mill with your students.  I'm guessing that it might start appearing in some casebooks shortly.

Endnote: The image of a Pioneer Mill building is from the University of Hawaii's Center for Oral  History  page on Pioneer Mill, a company founded in 1862.  More images of abandoned Mill buildings and a story about the Mill here and a really cool 360° one of the Mill here.

Alfred L. Brophy

Comments are held for approval, so they will not appear immediately.

Dobris on the RAP

Joel Charles Dobris (UC Davis School of Law) has posted a Comment on the Race to Repeal the Rule Against Perpetuities on SSRN.  Here's the abstract:

There has been a race to the bottom among a large minority of jurisdictions to repeal the Rule Against Perpetuities. This Comment discusses obstacles if we wish to rerun the race, at some point in the distant future, as well as some of the possible ways to bring back the Rule. The author also discusses the continued rejection of the repeal by academics. He concludes the professoriate may find it possible to live with the consequences of the race and that if the political will to bring back the Rule comes to exist, that Society will find a way to repeal the repeal.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

French on the Problem of the Future

Susan French (UCLA Law School) has posted Perpetual Trusts, Conservation Servitudes, and the Problem of the Future on SSRN. Here is the abstract:

This short article explores the similarities between perpetual private trusts and conservation servitudes granted in perpetuity, the adequacy of existing doctrines to handle future changes in circumstances, the deference due to donor intent, and concludes that legal changes will be needed to give private trust beneficiaries more power to determine how trust assets will be used and to protect the public interests in conservation servitudes and the continuing utility of the land subject to them.

Ben Barros